D. Russo Inc. v. Chiesa

This
matter comes before the Court on two motions for summary
judgment, pursuant to Federal Rule of Civil Procedure 56: 1)
the motion by Defendants Daniel Antonelli, Suzette Cavados,
Manuel Figeuiredo, Joseph Florio, Kevin Kalendek, Ronald
Manzella, Richard Milanda, Clifton People, Anthony Terrezza,
the Township of Union Police Department, and the Township of
Union (collectively, the “Township”); and the
cross-motion by Plaintiffs D. Russo Inc. t/a “H22,
” Kevin Hickey (“Hickey”), and the estate
of Daniel Russo (collectively, “Plaintiffs”). For
the reasons stated below, Defendants' motion will be
granted in part and denied in part, and Plaintiffs'
cross-motion will be denied.

This
case arises from a long-running dispute between Plaintiffs,
an adult entertainment business known as “Hott
22” which operated in the Township of Union, New Jersey
and its owners, and the Township. Plaintiffs filed this case
in 2012, and the complaint presently active is the Second
Amended Complaint (“SAC”), which asserts six
counts (though the count which comes sixth is denominated the
“Tenth Count.”)

The
Second Amended Complaint asserts that it concerns events
which occurred on or about April 13, 2012, when officers from
the Township of Union Police Department closed down Hott 22
on the basis that it violated the Sexually Oriented Business
Act (“SOBA”), N.J.S.A. § 2C:34-7. Defendants
have now moved for summary judgment on certain claims, and
Plaintiffs have cross-moved for summary judgment on certain
claims.

On June
15, 2017, Plaintiffs submitted a sur-reply brief - a reply to
Defendants' opposition to their cross-motion - without
leave of the Court. Local Civil Rule 7.1(h) states: “No
reply brief in support of the cross-motion shall be served
and filed without leave of the assigned district or
magistrate judge.” Because the sur-reply brief was not
permitted by L. Civ. R. 7.1(h), it was not considered by this
Court.

Defendants
first move for summary judgment on all claims against the
Township of Union Police Department on the ground that a
municipal police department is not a “person, ”
separate from the municipality, within the meaning of 42
U.S.C. § 1983. Plaintiffs agree, and Judgment will be
entered in Defendants' favor on all claims against the
Township of Union Police Department.

Defendants
next move for summary judgment on all Monell claims
against the Township of Union, contending that Plaintiffs
have no evidence to support these claims. In opposition,
Plaintiffs point to the letter dated April 13, 2012 from
Daniel Antonelli, attorney for the Township, to Kevin Hickey.
In this brief letter, in short, Mr. Antonelli reported that
the New Jersey Supreme Court had denied certification of the
case challenging the decision of the Appellate Division that
N.J.S.A. 2C:34-7 was constitutional as applied to Hott 22.
(Hittman Cert. Ex. A.) The letter then stated:

Consequently, please accept this letter as a cease and desist
Order. If you continue to operate your business you, the
manager or anyone else running the business will be deemed to
have violated the above mentioned statute, which under the
law is a fourth degree crime.

(Id.) Plaintiffs' opposition brief calls this
letter “a smoking gun, ” and argues: “If
Mr. Antonelli's letter . . . fails to evidence policy
making, with the knowledge and approval of the Township, then
there is scarcely likely to be a fact pattern that
does.” (Pls.' Opp. Br.) The opposition brief does
not give any further explanation of how Plaintiffs support
their Monell claim against the Township.

Plaintiffs'
argument in opposition to the motion for summary judgment
begins with a crucial mistake, contending that Defendants
moved for summary judgment on the ground that a municipality
cannot be liable for the conduct of its employees under a
respondeat superior theory pursuant to
Monell. The first sentence of Defendants'
argument for summary judgment on the Monell claim
states: “plaintiffs have failed to adduce any facts to
establish liability.” (Defs.' Br. 10.)

Plaintiffs
bear the burden of proof for a claim pursuant to § 1983.
“[W]ith respect to an issue on which the nonmoving
party bears the burden of proof . . . the burden on the
moving party may be discharged by ‘showing' - that
is, pointing out to the district court - that there is an
absence of evidence to support the nonmoving party's
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Defendants, as the movants without the burden of
proof at trial, satisfy their initial summary judgment burden
by pointing to the absence of evidence to support
Plaintiffs' case. In the first sentence of their argument
for summary judgment, Defendants did just that.

Once
the moving party has satisfied its initial burden, the party
opposing the motion must establish that a genuine issue as to
a material fact exists. Jersey Cent. Power & Light
Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir.
1985). “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to
allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001). The Supreme Court has held:

[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial. In such a situation, there can
be ‘no genuine issue as to any material fact, '
since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders
all other facts immaterial.

Celotex, 477 U.S. at 322-323. Thus, as to each
claim, to defeat the motion for summary judgment, Plaintiffs
must point to sufficient evidence to allow a jury to find ...

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